A power of attorney form (POA) is a document that lets a person (the principal) choose someone else (their agent) to handle their medical and financial responsibilities. It’s recommended the principal choose their spouse, a family member, or a close friend. A power of attorney form is required to be signed in accordance with state law (such as witnesses or a notary public). After signing, the agent must present the document each time they are to act in the place of the principal.
- Allows a person to act on behalf of another person
- Are either durable or non-durable
- Durable = does not terminate if the principal is incapacitated
- Can be used for finances, medical matters, taxes, real estate, and more
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
Advance Directive – Combines a living will and medical power of attorney into one (1) document.
Durable Power of Attorney – Allows an agent to take someone’s place for financial decisions and remains valid if the principal should become incapacitated.
General Power of Attorney – Allows an agent to take someone’s place for financial decisions but becomes invalid if the principal should become incapacitated.
Limited Power of Attorney – Allows an agent to take someone’s place for a single occurrence. This commonly is voided after the action is handled.
Living Will – Sets end-of-life treatment options for a patient and is usually coupled with medical power of attorney.
Medical Power of Attorney – Allows an agent to take someone’s place for medical decisions only if the principal can no longer do so for themselves.
Minor (child) Power of Attorney – Allows a parent or guardian to allow someone else to make decisions on behalf of their child. This has a maximum period of 6 to 12 months depending on the State.
Real Estate Power of Attorney – Allows someone else to make buying, selling, or leasing decisions on their behalf.
Tax Power of Attorney (2848) – For Federal (IRS) or State tax purposes. Required by most tax accountants and lawyers when filing on their client’s behalf.
Vehicle (DMV) Power of Attorney – When selling or registering a motor vehicle for another person.
Revocation of Power of Attorney – Cancels an existing power of attorney. Must be sent to the agent and anyone else that has a copy of the original POA.
A power of attorney is a form used for providing a person (agent) with the authority to represent another person, be it for the short or long term. The form is commonly used when electing someone else to handle financial transactions or medical decisions. The most popular type of designation, known as “durable”, allows the appointment to remain active even if the principal should become incapacitated.
It’s very important to understand the difference between a power of attorney form being durable vs not being durable (non-durable). A power of attorney form that is durable gives the principal’s agent the power to remain as the agent and make decisions if the principal is unable to make decisions on their own, a term referred to as being incapacitated. Therefore, the agent will have the power to make decisions without the principal’s supervision. It’s important that the agent fully knows the wishes of the principal should they become incapacitated.
It should always be expressly stated within a power of attorney form whether or not a power of attorney given from a principal to their agent is durable or non-durable.
Use the flow chart to decide which power of attorney document best fits your needs:
Getting power of attorney requires a principal to select a trusted person to handle specific responsibilities on their behalf. The powers and designation are written in a document called a “power of attorney form” which is required to be signed under the laws (statutes) located in the State. Once signed, the agent may use the form whenever they are to act in the place of the principal.
- Step 1 – Select an Agent
- Step 2 – Choose Powers
- Step 3 – Write the Power of Attorney
- Step 4 – Sign the Document
- Step 5 – Register and Use
An agent, also known as an “attorney-in-fact” or “surrogate”, may act on behalf of the principal for financial or medical-related decisions, or both. When selecting an agent, the principal should choose someone that they believe to be the most trusted person they know. Therefore, the principal’s spouse, close family member or friend is suggested.
If the principal is having a difficult time selecting who should be their agent, it should be the same person(s) that are named as beneficiaries in their Last Will and Testament.
Decide the powers that the agent will have during the term of the power of attorney. Depending on the form, this may be wide-ranging financial responsibility or the ability to make health care decisions for someone else. No matter the role, the principal will be the ultimate decider of what the agent can and cannot do on their behalf.
Once the powers have been agreed-upon it’s time to meet with the agent and complete the documents. The agent should be made aware and explained in a clear-manner the intentions of the principal. Once the agent has understood the wishes and plans of the principal the documents should be authorized.
It’s highly recommended to use the power of attorney documents specific to your State (statutory).
Each State has its own signing requirements depending on the form used. Most power of attorney forms require to be signed with a notary public, witnesses, or both. Some States have further requirements that family members, beneficiaries, and medical staff cannot be considered witnesses. Therefore, it’s highly recommended the principal read the laws within their State to ensure the power of attorney document is being completed legally.
Signing Requirements By Form
- Advance Directive
- Durable Power of Attorney
- General Power of Attorney
- Limited Power of Attorney
- Living Will
- Medical Power of Attorney
- Minor (child) Power of Attorney
- Real Estate Power of Attorney
- Revocation (to cancel)
- Tax Power of Attorney
- Vehicle Power of Attorney
In some states, such as California, a principal is able to protect themselves by registering the signed power of attorney with a government agency. For the agent to act in the place of the principal, he or she must present a copy of the power of attorney each time they are to act in their presence. Some institutions, such as banks and hospitals, may allow the agent to file the power of attorney so that it does not have to be shown for each occurrence.
The Uniform Power of Attorney Act (UPOAA) was created by the Uniform Law Commission to provide the best possible legislation with regard to a power of attorney. Since being introduced in 2006, it has been enacted in 28 States with more States scheduled to enact the UPOAA.
The UPOAA only applies to financial powers and does not affect health care, guardianship, or conservatorship decisions.
|Connecticut||2016||Public Act No. 15-240|
|Georgia||2018||House Bill 897|
|Idaho||2008||Title 15, Chapter 12|
|Kentucky||2020||KRS Chapter 457|
|Nevada||2019||NRS Chapter 162A|
|New Mexico||2011||SB 146|
|North Carolina||2017||SB 569|
|South Carolina||2016||SB 778|
|South Dakota||2020||SB 148|
|West Virginia||2012||HB 4390|
A power of attorney form should not be drafted from scratch, unless you are an experienced attorney that has extensive knowledge with regard to power of attorney law. This explanation on how to write a power of attorney details the steps a principal should take when filling out their power of attorney form.
Step 1 – Read the Power of Attorney Form
Your power of attorney form should be detailed and themed to your specific needs. If you are trying to create a power of attorney to give financial powers to your agent, be certain that you using a are not using a medical power of attorney. Once you are satisfied having read the document, it’s time to pick up the pen and complete.
Step 2 – Make it State Specific
1. State – A power of attorney must be state specific, therefore enter the state of where the principal resides.
Step 3 – Choosing an Agent
2. Name of Principal – Enter the full legal name of the Principal (the Principal is the person giving away powers)
3. Name of the agent (the agent is the person that is receiving the powers)
4. Address of the agent
5. Telephone number of the agent
Step 4 – Successor Agent’s (Optional)
In the event that the primary agent dies or is unable to perform their duties, it’s possible to list a person as a backup (successor).
6 & 7 & 8. Enter the name, address, and phone number of the successor agent.
9 & 10 & 11. Also known as a co-agent, enter the name, address, and phone number of the 2nd successor agent.
Step 5 – Grant Powers to Agent
12. The Principal must initial next to each power that they wish to give to their agent. As seen in the image example, do not use a check mark to grant powers.
Step 6 – Special Instructions
13. Use special instructions if you need to give specific details about a power. For example, if you give powers to two agents, you can state within the special instructions that they act in conjunction with each other on all matters.
Step 7 – Nominees
14, 15, & 16. Personal information of the person nominated to handle the principal’s estate if a court needs to appoint a conservator.
17, 18, & 19. Personal information of the nominee to handle the principal’s personal matters such as health.
Step 8 – Principal’s Signature
20. In section 20, enter the personal information of the principal including the Name, Date, Address, and Telephone Number. It’s better to wait to sign until in the presence of a Notary.
Step 9 – Agent’s Certification
21 & 22. Enter the State and County in which the agent resides. It does not have to be the same state and county in which the principal lives.
23. Enter the agent’s name. (Note: By completing this section, the agent is testifying under perjury that they are being given powers from the principal).
24. Enter the principal’s name.
25. Enter the current date in which this section was completed.
Step 10 – Agent’s Signature
26. Complete the document by filling in the agent’s personal information. If possible, wait until in the presence of a notary to sign the document.